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Mealey's Elder Law

  • March 20, 2019

    Nursing Home Had No Fiduciary Duty To Resident, North Carolina Court Holds

    RALEIGH, N.C. — A North Carolina appeals court on March 19 reversed a ruling that a nursing home breached a fiduciary duty to a resident when the home requested that his daughter sign an arbitration agreement, ordering that the case be remanded for a review of whether the nursing home and others have standing under the arbitration agreement (Patricia Hager v. Smithfield E. Health Holdings, No. COA18-651, N.C. App., 2019 N.C. App. LEXIS 238).

  • March 20, 2019

    Alabama High Court: Probate Court Never Formally Transferred Will Contest

    MONTGOMERY, Ala. — An 8-1 Alabama Supreme Court on March 15 dismissed a man’s appeal of a circuit court’s decision finding that he was unable to show that his neighbors exercised undue influence over his father before his death, holding that the case was not properly transferred to the circuit court from the probate court in accordance with Alabama law (Steven Christopher Jones v. Tammy Brewster, et al., No. 1170450, Ala. Sup., 2019 Ala. LEXIS 20).

  • March 19, 2019

    Kentucky High Court Upholds Preponderance-Of-Evidence Standard In Visitation Suit

    FRANKFORT, Ky. — The Kentucky Supreme Court on March 14 upheld a ruling granting limited visitation to the paternal grandfather of two children in the permanent custody of their maternal grandparents, finding that the trial court properly applied the preponderance-of-the-evidence standard because the clear and convincing evidence standard applies only where a grandparent visitation dispute involves a custodial parent (David Morton, et al. v. Bruce Tipton, No. 2018-SC-000390-DGE, Ky. Sup., 2019 Ky. LEXIS 81).

  • March 18, 2019

    Appeals Panel Vacates Dismissal Of Executors’ Suit Against Trusts Over Forum

    WASHINGTON, D.C. — A District of Columbia Circuit U.S. Court of Appeals panel on March 15 overturned a district judge’s ruling dismissing a lawsuit brought by the executors of the estate of a Taiwanese plastics magnate and billionaire against trusts he formed before his death, finding that the judge abused his discretion by not giving appropriate weight to the executors’ choice of forum and when weighing the public and private interest factors in favor of dismissal (Robert Shi v. New Mighty U.S. Trust, et al., No. 18-7066, U.S. App. D.C. Cir., 2019 U.S. App. LEXIS 7659)

  • March 18, 2019

    High Court Denies Review Of RICO Ruling In Estate Dispute

    WASHINGTON, D.C. — The U.S. Supreme Court on March 18 denied review of a Second Circuit U.S. Court of Appeals ruling allowing a woman who accuses her younger brother of running her father’s estate “as his personal piggy bank” to proceed with a claim for legal expenses incurred in filing her complaint under the Racketeer Influenced and Corrupt Organizations Act (David D’Addario, et al. v. Virginia A. D’Addario, et al., No. 18-890, U.S. Sup.).

  • March 18, 2019

    High Court Will Not Address Pleading Standards In False Claims Act Suit

    WASHINGTON, D.C. — The U.S. Supreme Court on March 18 denied a nursing facility’s petition for a writ of certiorari and refused to review a Sixth Circuit U.S. Court of Appeals ruling that revived a woman’s False Claims Act (FCA) lawsuit accusing it of submitting fraudulent bills to Medicare on the ground that she sufficiently pleaded materiality and scienter (Brookdale Senior Living Communities Inc. v. United States, ex rel. Marjorie Prather, No. 18-699, U.S. Sup.).

  • March 15, 2019

    Probate Court Ordered By Panel To Conduct Hearing On Undue Influence Claim

    DETROIT— A Michigan appeals court panel on March 12 ordered a probate court judge to hold an evidentiary hearing to determine if two siblings sufficiently stated that their brother exercised undue influence over their mother’s distribution of money and property from two sub-trusts, holding that the lower court rendered its decision prematurely and did not fully consider evidence presented by the petitioners (In re:  Monier Khalil Living Trust, No. 341142, Mich. App., 1st Dist., 2019 Mich. App. Unpub. LEXIS 469).

  • March 14, 2019

    Secretary Of Health And Human Services Refutes Medicare Beneficiaries’ Arguments

    NEW HAVEN, Conn. — The U.S. secretary of Health and Human Services on March 6 replied to Medicare beneficiaries’ opposition to his second motion for summary judgment in the beneficiaries’ class complaint filed in a Colorado federal court, arguing that the beneficiaries have failed to demonstrate that there is any genuine issue of material fact regarding whether class members who have been hospitalized since Oct. 1, 2013, have “a protected property interest in inpatient admission” (Christina Alexander, et al. v. Alex M. Azar II, Secretary of Health and Human Services, No. 11-1703, D. Conn.).

  • March 14, 2019

    Insurer Asks 8th Circuit To Affirm Decision Finding No Coverage Under Policy

    ST. LOUIS — An insurer and a third-party claims administrator on Feb. 19 responded to an appeal in the Eighth Circuit U.S. Court of Appeals filed by a woman who was denied insurance coverage for her stay at a nursing home, arguing that a district court’s decision granting their motion for summary judgment should be affirmed because the facility where she was a resident did not meet the requirements of her insurance policy (Leona Van Dusseldorp v. Continental Casualty Co., et al., No. 18-3257, 8th Cir.).

  • March 13, 2019

    1st Circuit Denies New Trial, Affirms Nearly $1.3M Age Bias Verdict

    BOSTON — A Massachusetts trial court judge didn’t err in applying New York City law to an age bias dispute between a Massachusetts man and his former employer in New York City, a First Circuit U.S. Court of Appeals panel ruled March 8, upholding a $1,275,000 jury verdict in the former employee’s favor (Yury Rinsky v. Cushman & Wakefield, Inc., No. 18-1302, 1st Cir., 2019 U.S. App. LEXIS 6999).

  • March 11, 2019

    Hoover Retirees Seek En Banc Rehearing After Benefits Deemed Alterable

    CINCINNATI — Hoover Co. retirees filed a petition for rehearing en banc on March 1, approximately two weeks after a divided Sixth Circuit U.S. Court of Appeals panel held that the obligation to provide lifetime health care benefits promised in multiple collective bargaining agreements (CBA) ended when the last CBA ended (Joseph Zino, et al. v. Whirlpool Corp., et al., Nos. 17-3851/3860, 6th Cir.).

  • March 11, 2019

    ‘Largest-Ever’ Nationwide Elder Fraud Sweep Announced By Department Of Justice

    WASHINGTON, D.C. —The U.S. Department of Justice announced March 7 that it has charged more than 260 global defendants who allegedly targeted more than 2 million mostly elderly Americans in financial schemes that caused losses of more than $750 million, surpassing last year’s coordinated crackdown on more than $500 million in elder fraud.

  • March 8, 2019

    North Carolina Appeals Panel Finds Health Benefits For Retirees Are Not Static

    RALEIGH, N.C. — A North Carolina appeals court panel on March 5 ruled that a trial court erred in finding that health benefits for state retirees can’t be altered as the State Health Plan statute promises only that retirees will receive the same access to health benefits as active employees (I. Beverly Lake, et al. v. State Health Plan for Teachers and State Employees, et al., No. COA17-1280, N.C. App., 2019 N.C. App. LEXIS 181).

  • March 7, 2019

    Panel Majority Says Arbitrator Exceeded Scope Of Authority In Retiree Benefits Dispute

    CINCINNATI — The majority of the Sixth Circuit U.S. Court of Appeal on March 5 reversed a district court’s ruling affirming an arbitrator’s award in a dispute over lifetime retirement health care benefits after determining that the arbitrator exceeded the scope of his authority and failed to properly apply the clear language of the collective bargaining agreement (CBA) at issue (International Union, et al. v. TRW Automotive U.S. LLC, No. 18-01160; TRW Automotive U.S. LLC v. International Union, et al., No. 18-1161, 6th Cir., 2019 U.S. App. LEXIS 6598).

  • March 7, 2019

    Judge: Gynecologist’s Opinion Can Support Negligence Claims Against Nursing Home

    NEW HAVEN, Conn. — A gynecologist’s opinion that a nursing home was negligent in treating a patient for dementia constituted a sufficient expert opinion under Connecticut law to support a negligence lawsuit brought against the facility and its management by a mother and her son, a federal judge ruled March 4 in denying the defendants’ motion to dismiss, finding that the gynecologist qualified as a “similar health care provider” under state law because a large part of her patient population is composed of geriatric women (Dorina Schachter, et al. v. Sunrise Senior Living Management Inc., et al., No. 18-cv-953, D. Conn., 2019 U.S. Dist. LEXIS 33714).

  • March 7, 2019

    11th Circuit Upholds Jury Verdict For Employer In Discrimination Appeal

    ATLANTA — A 11th Circuit U.S. Court of Appeals on Feb. 25, finding no abuse of discretion when the substance of a statement by the employer’s representative was excluded, affirmed a jury’s verdict for a real estate management company in an employee’s age discrimination suit (George Amador v. Jones Lang LaSalle Americas, Inc., No. 17-12281, 11th Cir., 2019 U.S. App. LEXIS 5417).

  • March 6, 2019

    20 States, District Of Columbia Urge High Court To Allow Trust’s Taxation

    WASHINGTON, D.C. — Twenty states as well as the District of Columbia urged the U.S. Supreme Court in an amicus curiae brief filed March 1 in support of the North Carolina Department of Revenue to overturn a North Carolina Supreme Court ruling that found that the department improperly taxed a family trust based on the in-state residency of a beneficiary, arguing that allowing the ruling to stand would result in a “judicially created tax shelter” that allows trusts to avoid paying income taxes to any state (North Carolina Department of Revenue v. Kimberly Rice Kaestner 1992 Family Trust, No. 18-457, U.S. Sup.).

  • March 6, 2019

    Indiana High Court Finds Widow’s Death Does Not Extinguish Survival Claims

    INDIANAPOLIS — The Indiana Supreme Court on Feb. 21 vacated an appeals court’s decision affirming a partial summary judgment award in favor of defendants in a wrongful death and survival action lawsuit brought by an elderly man who died intestate after initiating the action, holding that his survival action claims were not extinguished upon his death and that a proper party needs to be identified to pursue his claims (James T. Horejs, et al. v. Albert Milford, D.O., et al., No. 19S-CT-97, Ind. Sup., 2019 Ind. LEXIS 42).

  • March 6, 2019

    Nebraska High Court Says Lower Court Lacked Jurisdiction In Will Dispute

    LINCOLN, Neb. — The Nebraska Supreme Court on Feb. 22 vacated a ruling awarding summary judgment to an estate in a suit brought by a woman who claims that she was not disinherited from her father’s will, finding that the district court lacked jurisdiction because a probate proceeding was filed in county court before the plaintiff filed her action (Nicole Brinkman v. Seth Michael Brinkman, et al., No. S-18-476, Neb. Sup., 2019 Neb. LEXIS 29).

  • March 5, 2019

    California Appellate Panel Affirms Nullification Of Marriage Based On Unsound Mind

    SAN FRANCISCO — A California appellate panel on Feb. 28 affirmed a trial court’s nullification of a marriage between a man suffering from dementia and his partner, finding that the man was of unsound mind at the time of the union (In re the Marriage of Milton Marvin Mapp and Patricia Ann Williams, No. A153058, Calif. App., 1st Dist., Div. 2, 2019 Cal. App. Unpub. LEXIS 1422).